0320150068
02-18-2016
Zula G.,1 Petitioner, v. Ashton B. Carter, Secretary, Department of Defense (Defense Finance & Accounting Service), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Zula G.,1
Petitioner,
v.
Ashton B. Carter,
Secretary,
Department of Defense
(Defense Finance & Accounting Service),
Agency.
Petition No. 0320150068
MSPB No. CH0752134550I3
DENIAL OF CONSIDERATION
On May 27, 2015, Petitioner filed a petition with the Equal Employment Opportunity Commission asking for review of a Final Order issued by the Merit Systems Protection Board (MSPB) concerning her claim of discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
At the time of events giving rise to this complaint, Petitioner worked as an Accountant at the Agency's Defense Finance Accounting Service facility in Columbus, Ohio. Petitioner filed a mixed case appeal with the MSPB alleging that the Agency discriminated against her on the bases of race (Asian) and national origin (Asian) when effective August 10, 2013, it removed her for failure to maintain "eligibility for access to classified information and/or occupancy of a sensitivity position."
On November 14, 2014, after a hearing, an MSPB Administrative Judge (AJ) issued an initial decision affirming Petitioner's removal and declining to adjudicate the merits of Petitioner's allegations of discrimination. Citing Board precedent, the AJ determined that she lacked the authority to consider allegations of discrimination in connection with the revocation of a security clearance. Petitioner requested review by the full Board. In an order dated September 14, 2015, the Board issued a final order denying the petition for review. Petitioner filed the instant petition, reiterating many of the arguments from her previous appeal and petition.
EEOC Regulations provide that the Commission has jurisdiction over mixed case appeals on which the MSPB has issued a decision that makes determinations on allegations of discrimination. 29 C.F.R. � 1614.303 et seq. The Commission must determine whether the decision of the MSPB with respect to the allegation of discrimination constitutes a correct interpretation of any applicable law, rule, regulation or policy directive, and is supported by the evidence in the record as a whole. 29 C.F.R. � 1614.305(c).
In the instant matter, the MSPB explicitly found that it lacked the authority to consider the merits of Petitioner's allegations of discrimination. Since the MSPB did not make a determination on the allegations of discrimination, the Commission has nothing to review. In these circumstances, the Commission does not have jurisdiction over Petitioner's petition. See Petitioner v. Dep't of Def., EEOC Petition No. 0320150005 (Feb. 19, 2015) (denied consideration where the MSPB found that it was precluded from reviewing petitioner's allegation of discrimination regarding the revocation of her security clearance); Adkison v. Dep't of the Navy, EEOC Petition No. 03A20082 (Sept. 18, 2002) (denied consideration where the MSPB found that it was precluded from reviewing petitioner's allegation of discrimination regarding the revocation of her security clearance); Biggers v. Dep't of the Defense, EEOC Petition No. 03980049 (Sept. 9, 1998) (denied consideration where the MSPB found that it had no jurisdiction to review petitioner's allegation of discrimination regarding the denial of his security clearance). As the MSPB did not address any matters within the Commission's jurisdiction, the Commission has no jurisdiction to review Petitioner's case. Consequently, the Commission will DENY consideration of the petition for review.
CONCLUSION
Based upon a thorough review of the record, it is the decision of the Commission to CONCUR with the final decision of the MSPB finding no discrimination. The Commission finds that the MSPB's decision constitutes a correct interpretation of the laws, rules, regulations, and policies governing this matter and is supported by the evidence in the record as a whole.
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W0610)
This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. You have the right to file a civil action in an appropriate United States District Court, based on the decision of the Merit Systems Protection Board, within thirty (30) calendar days of the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work.
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
___2/18/16_______________
Date
1 This case has been randomly assigned a pseudonym which will replace Petitioner's name when the decision is published to non-parties and the Commission's website.
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